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Part 4: From the Vault

CAN A CONSTITUTIONALIST PRESIDENT DO ANYTHING? (Part 4)

What can a constitutionalist President do about the bureaucracy?  It will admittedly take an act of Congress to abolish the Departments of Energy, Education or other agencies. 

However, there is plenty to do.  The President can appoint Cabinet secretaries, undersecretaries, ambassadors, judges and United States attorneys.  He or she MUST have solid constitutionalists in those positions.  Cong. Paul did not directly speak to the issue but I would suggest that upon election, turn the office-seeking on its head.  Use the transition team to find solid constitutionalists from the private sector, academia and a few from government, to fill those positions.  Go to them and ask them to consider a short time of service to their Republic.  Few will without a good reason turn down a fellow constitutionalist President. 

The good news is the Senate usually gives the new President a pass (absent moral or ethical lapses) on Cabinet officials.  This is true for judges sometimes, especially in the lower courts.  The bad news is that the constitutionalist administration will have less of a pass than a liberal one.   

The short-term answer may be recess appointments.  Fill all the vacancies in the Federal judiciary with recess appointments with solid constitutionalists and then when the time comes, ask the Senate to confirm them.  There will be one or two bad apples but the vast majority should be confirmable.  There will be plenty of politics and lovers of liberty will have to be vigiliant. 

Cong. Paul in his manifesto says that any time a vacancy or retirement occurs in the Federal bureaucracy, he would apply the “snow day rule”:  if the position is non-essential, simply not fill it.  Paul also would use executive orders in a different manner than any of his predecessors: 

Executive orders are a useful management tool for the president, who must exercise control over the enormous federal bureaucracy. However, in recent years executive orders have been used by presidents to create new federal laws without the consent of Congress. As President Clinton’s adviser Paul Begala infamously said, “stroke of the pen, law of the land, pretty cool.” No, it is not “pretty cool,” and a conscientious president could go a long way toward getting us back to the Constitution’s division of powers by ordering his counsel or attorney general to comb through recent executive orders so the president can annul those that exceed the authority of his office. If the President believed a particular Executive Order made a valid change in the law, then he should work with Congress to pass legislation making that change.

I agree.  In fact, if a constitutionalist President (Paul or Johnson) is elected, I would be glad to serve as the assistant White House counsel in charge of reviewing all prior executive orders (I am an attorney and have some academic/scholarly credentials) for likely repeal!  I wouldn’t even have to move to DC.  I’d do my research from home and report to President Paul once a week or so with my results.  I’d only have to go back to FDR’s administration and I’d be done with humble service to the cause of liberty. 

I also agree that necessary executive orders can be recommended as legislation.  Treaties should also be reviewed (perhaps by the new special WH counsel Paul hired who works at home) for revision, reservation and repeal. 

Cabinet secretaries can use their power to grant state waivers to implement liberty and encourage diverse thinking on policy, eespecially in the field of health, education and welfare (wasn’t there an agency called that?  :) ) Paul calls for pilots to be armed:

Perhaps the most efficient step a president could take to enhance travel security is to remove the federal roadblocks  that have frustrated attempts to arm pilots.  Congress created provisions to do just that in response to the attacks of September 11, 2001.  However, the processes for getting a federal firearms license are extremely cumbersome, and as a result, very few pilots have gotten their licenses.  A constitutionalist in the Oval Office would want to revise those regulations to make it as easy as possible for pilots to get approval to carry firearms on their planes.

Agreed!  Most pilots I would suspect are veterans and have a clean record.  I trust them to handle arms in appropriate ways.  That is only one example of clearing regulatory underbrush without congressional approval.  Another is to issue directives to the US Attorneys not to prosecute medical marijuana cases, cases where states have laws in place to deal with it and are dealing with it, and cases based on unconstitutional statutes.  

For my final post, I’ll speak to monetary policy.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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